Indiana § 35-50-2-15. Sentencing enhancement for person committing felony offense while a member of, at the direction of, or in affiliation with a criminal gang -- Expert testimony permitted

(a) This section does not apply to an individual who is convicted of a felony offense under IC 35-45-9.

(b) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed a felony offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person:

(1) knowingly or intentionally was a member of a criminal organization while committing the offense; and

(2) committed the felony offense:

(A) at the direction of or in affiliation with a criminal organization; or

(B) with the intent to benefit, promote, or further the interests of a criminal organization, or for the purposes of increasing the person's own standing or position with a criminal organization.

(c) If the person is convicted of the felony offense in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall hear evidence in the enhancement hearing.

(d) If the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person knowingly or intentionally was a member of a criminal organization while committing the felony offense and committed the felony offense at the direction of or in affiliation with a criminal organization as described in subsection (b), the court shall:

(1) sentence the person to an additional fixed term of imprisonment equal to the sentence imposed for the underlying felony, if the person is sentenced for only one (1) felony; or

(2) sentence the person to an additional fixed term of imprisonment equal to the longest sentence imposed for the underlying felonies, if the person is being sentenced for more than one (1) felony.

(e) A sentence imposed under this section shall run consecutively to the underlying sentence.

(f) A term of imprisonment imposed under this section may not be suspended.

(g) For purposes of subsection (c), evidence that a person was a member of a criminal organization or committed a felony at the direction of or in affiliation with a criminal organization may include the following:

(1) An admission of criminal organization membership by the person.

(2) A statement by:

(A) a member of the person's family;

(B) the person's guardian; or

(C) a reliable member of the criminal organization; stating the person is a member of a criminal organization.

(3) The person having tattoos identifying the person as a member of a criminal organization.

(4) The person having a style of dress that is particular to members of a criminal organization.

(5) The person associating with one (1) or more members of a criminal organization.

(6) Physical evidence indicating the person is a member of a criminal organization.

(7) An observation of the person in the company of a known criminal organization member on at least three (3) occasions.

(8) Communications authored by the person indicating criminal organization membership, promotion of the membership in a criminal organization, or responsibility for an offense committed by a criminal organization.

1. Except as otherwise provided in subsection 5 and NRS 193.169, any person who is convicted of a felony committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang, shall, in addition to the term of imprisonment prescribed by statute for the crime, be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years. In determining the length of the additional penalty imposed, the court shall consider the following information:

(a) The facts and circumstances of the crime;

(b) The criminal history of the person;

(c) The impact of the crime on any victim;

(d) Any mitigating factors presented by the person; and

(e) Any other relevant information.

The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed.

2. The sentence prescribed by this section:

(a) Must not exceed the sentence imposed for the crime; and

(b) Runs consecutively with the sentence prescribed by statute for the crime.

3. This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.

4. The court shall not impose an additional penalty pursuant to this section unless:

(a) The indictment or information charging the defendant with the primary offense alleges that the primary offense was committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang; and

(b) The trier of fact finds that allegation to be true beyond a reasonable doubt.

5. The court shall not impose an additional penalty pursuant to this section if the primary offense is a violation of NRS 201.570.

6. Except as otherwise provided in this subsection, the court shall not grant probation to or suspend the sentence of any person convicted of a felony committed for the benefit of, at the direction of, or in affiliation with a criminal gang if an additional term of imprisonment may be imposed for that primary offense pursuant to this section. The court may, upon the receipt of an appropriate motion, reduce or suspend the sentence imposed for the primary offense if it finds that the defendant rendered substantial assistance in the arrest or conviction of any other principals, accomplices, accessories or coconspirators to the crime, or of any other persons involved in the commission of a felony which was committed for the benefit of, at the direction of, or in affiliation with a criminal gang. The agency which arrested the defendant must be given an opportunity to support or oppose such a motion before it is granted or denied. If good cause is shown, the motion may be heard in camera.

7. In any proceeding to determine whether an additional penalty may be imposed pursuant to this section, expert testimony is admissible to show particular conduct, status and customs indicative of criminal gangs, including, but not limited to:

(a) Characteristics of persons who are members of criminal gangs;

(b) Specific rivalries between criminal gangs;

(c) Common practices and operations of criminal gangs and the members of those gangs;

(d) Social customs and behavior of members of criminal gangs;

(e) Terminology used by members of criminal gangs;

(f) Codes of conduct, including criminal conduct, of particular criminal gangs; and

(g) The types of crimes that are likely to be committed by a particular criminal gang or by criminal gangs in general.

8. As used in this section, "criminal gang" means any combination of persons, organized formally or informally, so constructed that the organization will continue its operation even if individual members enter or leave the organization, which:

(a) Has a common name or identifying symbol;

(b) Has particular conduct, status and customs indicative of it; and

(c) Has as one of its common activities engaging in criminal activity punishable as a felony, other than the conduct which constitutes the primary offense